Opinion
No. 1144 C.D. 2013
02-20-2014
Jeffrey Mason, Petitioner v. Pennsylvania Board of Probation and Parole, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Jeffrey Mason petitions for review of the Order of the Pennsylvania Board of Probation and Parole (Board) that denied Mason's Petition for Administrative Review and affirmed its recalculation of Mason's parole violation maximum sentence date (maximum date) from October 8, 2013 to March 26, 2016 based on Mason's recommitment as a convicted parole violator. On appeal, Mason argues that he is entitled to credit against his original sentence for the 984 days he spent in pre-sentence custody on new charges because the sentencing court did not give him credit for that time against his new sentence and, pursuant to Martin v. Pennsylvania Board of Probation and Parole, 576 Pa. 588, 840 A.2d 299 (2003), all periods of confinement must be allocated between either the new sentence or the original sentence. Discerning no error, we affirm.
Mason was sentenced to 5-to-10 years of incarceration with a minimum date of October 7, 2008 and a maximum date of October 8, 2013 (State Sentence). (C.R. at 1.) On or about December 9, 2008, the Board paroled Mason from the State Sentence with a release date of January 21, 2009. (C.R. at 4-7.) Mason was arrested on new charges and confined in Delaware County Prison (County Prison) on those charges on July 10, 2009. (C.R. at 14.) Mason did not post bail on the new charges. (C.R. at 68.) The Board issued a Warrant to Commit and Detain on July 10, 2009 pending the disposition of the new criminal charges. (C.R. at 10-11.) Thereafter, the Board recommitted Mason as a technical parole violator to serve 6 months backtime. (C.R. at 13.) Mason pled guilty to several of the charges on December 15, 2009. (C.R. at 15.) The Board, by decision dated August 22, 2011, recommitted Mason as a convicted parole violator to serve his total unexpired term with the beginning date to be determined once Mason was sentenced on the new criminal conviction. (C.R. at 59.) On March 20, 2012, Mason was sentenced to 1 year minus 1 day to 2 years minus 1 day on the new criminal conviction (County Sentence). (C.R. at 15, 65, 73.) The Board issued an Order to Recommit on March 8, 2013, in which it recalculated Mason's maximum date as March 26, 2016. (C.R. at 82-84.) In calculating Mason's new maximum date, the Board determined that Mason owed 1,721 days on his State Sentence and gave him credit for 254 days for the time spent in the County Prison from July 10, 2009 to March 21, 2010, leaving him with 1,467 days remaining on his State Sentence. (C.R. at 82-84.) Mason filed a timely Petition for Administrative Review, which the Board denied. (C.R. at 85-86, 88-89.) Mason now petitions this Court for review.
Mason indicated that the delay between his guilty plea in December 2009 and sentencing in March 2012 was the result of waiting to see how charges in a different case involving Mason were resolved and whether Mason would serve time on the two cases concurrently. (Hr'g Tr. at 13, C.R. at 56.)
In reviewing a recommitment decision, this Court's review is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether the decision is in accordance with the law, and whether the Board violated any of the parolee's constitutional rights. Larkin v. Pennsylvania Board of Probation and Parole, 555 A.2d 954, 956 n.1 (Pa. Cmwlth. 1989).
Mason argues that, because the sentencing court did not give him credit for any of the pre-sentence time he served in the County Prison against his County Sentence, the Board had to give him credit against his State Sentence for that entire time and erred in only crediting him for 254 of the 984 days he spent in the County Prison. Mason cites to the sentencing court's "Certificate of Imposition of Judgement [sic] of Sentence" (Judgment of Sentence), attached to his brief as Exhibit C, to establish that the sentencing court did not give him credit for his pre-sentence incarceration time against his County Sentence. According to Mason, he served his County Sentence from March 20, 2012, the effective date of his new sentence, until January 10, 2013, when he was transferred to SCI-Graterford, as noted in Mason's Moves Report. (C.R. at 64.) Adding 984 days to the day he became available to the Department of Corrections, Mason asserts that the correct maximum date on his State Sentence is March 28, 2014. Mason further argues that the Board arbitrarily chose March 21, 2010 as the date to cease giving him credit against his State Sentence, even though the sentencing court did not give him any credit for his pre-sentence incarceration and it does not coincide with relevant dates on his Moves Report.
Noting that the General Assembly has not "set the criteria by which credit is applied for time served" when a parolee commits a crime while on parole, our Supreme Court has interpreted Section 9760 of the Sentencing Code, 42 Pa. C.S. § 9760, which relates to "Credit for time served," as requiring that "an offender is to receive credit for all incarceration served before sentencing for which he is being detained in custody." Martin, 576 Pa. at 597-98, 840 A.2d at 303-04 (citing Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 404 n.6, 412 A.2d 568, 571 n.6 (1980)). "Underpinning credit statutes is the principle that an indigent offender, unable to furnish bail, should serve no more and no less time in confinement than an otherwise identically situated offender who succeeds in furnishing bail." Martin, 576 Pa. at 598, 840 A.2d at 304. Thus, in Gaito, the Supreme Court rejected the proposition that credit for pre-sentence confinement could apply only to the new sentence. Gaito, 488 Pa. at 404 n.6, 412 A.2d at 571 n.6. Rather, credit for time spent in pre-sentence custody on both a Board detainer and on the new charges should be applied equitably such that if there is no conviction or the new sentence is less than the time spent in pre-sentence custody, the offender should get credit against the offender's original sentence for the excess time. Martin, 576 Pa. at 599, 604-05, 840 A.2d at 305, 308-09; Armbruster v. Pennsylvania Board of Probation and Parole, 919 A.2d 348, 355 (Pa. Cmwlth. 2007). Notably, it is "the maximum term [that] represents the sentence imposed for a criminal offense, with the minimum term merely setting the date after which a prisoner may be paroled." Martin, 576 Pa. at 595, 840 A.2d at 302.
Section 9760 of the Sentencing Code provides:
After reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:42 Pa. C.S. § 9760.
(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.
(2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later reprosecuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts.
(3) If the defendant is serving multiple sentences, and if one of the sentences is set aside as the result of direct or collateral attack, credit against the maximum and any minimum term of the remaining sentences shall be given for all time served in relation to the sentence set aside since the commission of the offenses on which the sentences were based.
(4) If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.
We first address Mason's assertion that the Board arbitrarily chose March 21, 2010 as the day to cease giving Mason credit towards his State Sentence. This date is not arbitrary. It is exactly 2 years minus 1 day before March 20, 2012, the date Mason was sentenced on the new charges. In other words, any time served prior to March 21, 2010 would have been in excess of Mason's County Sentence and would, therefore, apply to his State Sentence pursuant to Martin.
Next, we consider Mason's argument that because the sentencing court did not give him any credit for his pre-sentence custody time against his County Sentence, which he contends he served from March 20, 2012 to January 10, 2013, he is entitled to have the entire 984 days spent in pre-sentence custody applied towards his State Sentence. After reviewing the record, we conclude that Mason's argument is without merit. Mason relies on the Judgment of Sentence for his County Sentence, dated March 20, 2012, which states "[t]his sentence is effective today - waiving credit time;" however, this document is not a part of the certified record. (Judgment of Sentence, Mason's Br. at Ex. C.) An appellate court may only consider the certified record on appeal when reviewing a case. HYK Construction Co., Inc. v. Smithfield Township, 8 A.3d 1009, 1017 (Pa. Cmwlth. 2010). Even if we were to take judicial notice of the Judgment of Sentence, we note that our Supreme Court has held that issues regarding the proper allocation of credit on a new sentence for time served are to be addressed by the sentencing court, or the Superior Court on appeal. McCray v. Department of Corrections, 582 Pa. 440, 448-51, 872 A.2d 1127, 1132-333 (2005); Armbruster, 919 A.2d at 355. In other words, if the sentencing court erroneously denied Mason credit for time served on his County Sentence, his remedy was to appeal to the Superior Court, not seek additional credit from the Board. Id. Moreover, the certified record appears to conflict with Mason's position that he began serving his County Sentence on March 20, 2012 because the Moves Report suggests that his "Sentence Status" was "Actively Serving" and his "Parole Status" was "Parole Violator Pend" between March 20, 2012 and April 12, 2012 at various State Correctional Institutions. (C.R. at 64.)
The Moves Report, which is frequently cited by both the Board and parolees in these matters, contains numerous codes and notations the meanings of which are not readily apparent to this Court. However, because it is one of the few pieces of evidence in this matter that outlines Mason's movements in some detail, we will make every attempt to decipher the meaning of the document.
We further note that the time period Mason asserts he served his County Sentence was only 295 days and Mason would have been required to serve, at a minimum, 364 days before he would be eligible for parole. As noted, the Moves Report suggests that Mason was serving some of his State Sentence during the March 20, 2012 to January 10, 2013 period, thereby further reducing the time he served on the County Sentence. (C.R. at 64.) --------
More importantly, it appears from the record that Mason has received all of the credit against his State Sentence that he is due. Looking at the entire time period Mason asserts is relevant, July 10, 2009 through January 10, 2013, Mason received credit against his State Sentence for all the time that exceeded his County Sentence of 2 years minus 1 day. It is "the maximum term [that] represents the sentence imposed for a criminal offense," Martin, 567 Pa. at 595, 840 A.2d at 302, and the parolee is entitled to credit against the original sentence only to the extent that the pre-sentence confinement exceeds the sentence received for the new charges, Armbruster, 919 A.2d at 355.
Finally, we note that the Board's recalculation of Mason's maximum date is correct. Mason owed 1,721 days on the State Sentence, the difference between his original maximum date of October 8, 2013 and his parole date of January 21, 2009. (C.R. at 82.) The Board properly gave Mason credit for 254 days for the time spent in the County Prison from July 10, 2009 to March 21, 2010, the period that exceeded his County Sentence. (C.R. at 82-84.) Subtracting 254 from 1,721 yields 1,467 days. Adding 1,467 days to March 20, 2012, the date Mason returned to state custody, results in a new maximum date of March 26, 2016.
Accordingly, we affirm the Board's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, February 20, 2014, the Order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge